Elon's purge...And The PRESS Act, a shockingly good piece of legislation, is close to passage

So Elon Musk today suspended reporters from the New York Times, Washington Post, The Intercept (my colleague Micah Lee), CNN, Mashable, and a few others. “I hope that even my worst critics remain on Twitter, because that is what free speech means,” Musk had said back in the heady days of April.

I suspect he’ll say the cause was that each of them posted something he doesn’t like related to the account that tracks — or used to track — his private jet. What Musk might not understand is that it is the mainstream journalists who live on Twitter everyday who give it its value. Because they’re on there, politicians have to be on there mixing it up, shaping the narrative. And so do all of the activists and advocacy groups. And that brings in everybody else, and makes it different. 

What’s key to understand is that the journalists are the variable in the equation. All politicians are on Facebook, but journalists have left, and as a result, it’s lost its liveliness. Politicians still post their press releases there and have interns engage with constituents, but the real fight is on twitter. Advocacy groups and politicians use Facebook to harvest emails of supporters and hit them up for donations, but you don’t see news made there. There was life in politics before twitter, and there can and will be life in politics after twitter. And Musk will bring about an after-twitter if he’s not careful. Once reporters get out of the habit of checking twitter, it’ll start to fade, and we might just realize we didn’t need to be on it that long after all. And that maybe it was unhealthy.

That’ll suck for me personally, since I’ve built up a significant presence there over the years and it’s a great way for me to get news and hot-takes out into the world. But it would probably be good for me if it goes away in the long run (especially if it meant the world got fewer of my hot takes and more of the cooled down ones). And thinking about that possibility makes me that much more grateful that you all have stuck with me over the years and built up this big newsletter community. You may not see it as a community, but more as an email that lands in your inbox at totally unpredictable times touching on totally unpredictable subjects. I get that. But from the replies and comments and now the live chats I’ve gotten a good sense of who a lot of you are and where you’re coming from. If I’m rambling, I suppose Musk’s purge has me in a reflective kind of space. By tomorrow, I suspect, he’ll be letting most of them back on, saying they only got short seven-day sentences or something.

Relatedly, perhaps, a fun programming note: I’ve always dreamed of turning this newsletter into more of a newspaper, and one of the most useful things about old-school newspapers – and also the thing that kept the price of a copy down to 25 cents – was the classifieds. Ann Friedman is a pioneer of the contemporary newsletter genre. I started this one in 2015, when she was already three years into producing the Ann Friedman weekly, and she’s still going strong. I’ve always liked her classified section, which is filled mostly with small businesses or other newsletters run by her readers. So I’m very gradually starting one of my own, which you can find down at the bottom of today’s edition. It’s a hyper eco-friendly shampoo and conditioner company – What better holiday gift could there be? – started by Jana Blankenship (who readers from Kent and Queen Anne’s County may recognize as the wife of our old friend Levi Blankenship).

The PRESS Act, a shockingly good piece of legislation, is close to passage

Anyhow, while free speech is getting trampled on by Elon Musk, a less powerful institution, the U.S. Congress, is shockingly taking steps that could lead to the most significant press protections passed into law in a generation. 

In September, the House of Representatives quietly passed a piece of legislation unanimously that stands up for the right of a free press against intrusions by the federal government.

That legislation, the Protect Reporters from Exploitative State Spying Act, or PRESS Act, stands a real chance of becoming law if the Senate takes it up before the expiration of the lame-duck session. The No. 2 Senate Democrat, Dick Durbin of Illinois, who chairs the Senate Judiciary Committee, has said he supports the bill, which gives it a boost in its quest for a floor vote.

The PRESS Act is sponsored by Maryland Democratic Rep. Jamie Raskin, and it effectively blocks the federal government from using subpoenas, jail, or the threat of jail to force reporters to turn over sources, and it blocks tech companies from sharing sensitive information from journalists’ devices with the federal government.

This week, Durbin announced in the Chicago Sun-Times that he would be pushing for a vote by unanimous consent on the bill. “At a time when the former president is calling for journalists to be jailed and referring to the press as the ‘enemy of the people,’ it’s critical that we protect this pillar of our democracy,” he wrote. “That’s why I support the PRESS Act and have cleared it for fast-track consideration on the Senate ‘hotline.’”

On Wednesday, Sen. Ron Wyden, D-Ore., who co-sponsored the bill with Sen. Mike Lee, R-Utah, tried to move the bill through the Senate by unanimous consent, like had been done in the House, but it was blocked by Sen. Tom Cotton, R-Ark. “The press unfortunately has a long and sordid history of publishing sensitive information from inside the government that damages our national security,” Cotton said on the Senate floor, going on to cite the Pentagon Papers as an example of such a leak, which he claimed was published by the New York Times in order to turn the public against the war effort. He also criticized reporting on the wars in Afghanistan and Iraq, which he claimed similarly undermined those war efforts. “Yet the PRESS Act would immunize journalists and leakers alike from scrutiny and consequences for their actions.”

The act would not, in fact, immunize leakers. The government would still be able to hunt and prosecute them as they do now; they just wouldn’t be able to threaten to jail journalists to pressure them to turn in their sources, as they did to The Intercept’s James Risen.

As for consequences for journalists, the First Amendment already bars the government from restricting the publication of any material, including classified information. The government can criminalize leaking but not publishing. That 200-year-old First Amendment protection is currently under threat by the prosecution of WikiLeaks co-founder Julian Assange for publishing national security secrets, though the PRESS Act itself would not cover the case, because the government uncovered his source, Chelsea Manning, without relying on Assange.

“This effectively would grant journalists special legal privileges to disclose sensitive information that no other citizen enjoys,” Cotton falsely claimed. Indeed, all citizens have the right to publish classified information; the crime, again, is in the leaking of it.

Cotton added that he had a particular grievance with the Fourth Estate itself. “If recent history has taught us anything, it’s that too many journalists these days are little more than left-wing activists who are at best ambivalent about America and are cavalier about our security and about the truth,” Cotton said, ironically attacking under the guise of patriotism those working under the First Amendment.

“The PRESS Act does not say, ‘Let’s have a fast-track for the liberals,’” Wyden told The Intercept.

The bill does not restrict protections to professional journalists but to any “person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

Given Cotton’s objection, the remaining viable path for the bill is to get included in the year-end omnibus spending legislation, according to congressional sources and those working on the outside to push the bill through. A floor vote, given the need to overcome a filibuster, would eat up too much of the little floor time left in the session. Durbin’s support is crucial for such an inclusion, and the bill would also likely need the backing of Sen. Chuck Grassley, R-Iowa, who told The Intercept he was still reviewing requests for the omnibus. Wyden said that he didn’t want to get into individual conversations with other senators but expressed optimism about the potential for the omnibus.

“After the PRESS Act passed the House with unanimous bipartisan support this fall, it came closer than ever to becoming law,” said Raskin. “A federal law to protect journalists in their work against the political whims of the day is a necessary step to defend press freedom. I am hopeful this measure can be included in a year-end omnibus package. It would be a great unifying statement.”

A spokesperson for Senate Majority Leader Chuck Schumer, D-N.Y., wasn’t immediately able to comment on the status of the talks, and Senate Minority Leader Mitch McConnell, R-Ky., declined to do so. “I don’t have anything to say about it right now,” McConnell said Thursday afternoon.

A SECOND PROBLEM that has stalled previous press shield bills like this one is fearmongering about a terrorist with a ticking bomb somewhere, along with vague claims like Cotton’s that reporting on Iraq and Afghanistan empowered terrorists. The ticking-bomb situation has likely never occurred in the real world, but Raskin’s bill writes an exception directly into the law for that fantastical scenario.

The bill makes an exception if “disclosure of the protected information is necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States; or disclosure of the protected information is necessary to prevent a threat of imminent violence, significant bodily harm, or death.”

The final important question the bill addresses is what information is protected, and it arrives at an impressively sweeping definition. “The term ‘protected information’ means any information identifying a source who provided information as part of engaging in journalism, and any records, contents of a communication, documents, or information that a covered journalist obtained or created as part of engaging in journalism.”

Previous press shield laws have included huge gaping loopholes, written into the law at the behest of the national security establishment, which end up gutting the law. James Risen, back when he was at the New York Times, was in a long-running legal battle with the Bush administration and then the Obama administration in which they repeatedly threatened him with jail time for not revealing sources. He refused, and they eventually backed off, but if this bill were passed into law, prosecutors would not have been able to come after Risen. In Risen’s case, there was no imminent threat claimed by the government, just vaguely worded assertions about national security that shouldn’t be taken seriously coming from a government that lies regularly about such threats.

None of this is new for Cotton. He rose to right-wing fame writing to the New York Times from active duty in Iraq, calling for the jailing of Risen and two of his Times colleagues. “I hope that my colleagues at the Department of Justice match the courage of my soldiers here and prosecute you and your newspaper to the fullest extent of the law. By the time we return home, maybe you will be in your rightful place: not at the Pulitzer announcements, but behind bars,” Cotton wrote.

Wyden rejected Cotton’s argument. “You can’t get 435 members of Congress to vote for something if the intelligence community is saying it’s going to tie their hands,” Wyden said, pointing to the bill’s exceptions, and noting that he may be the longest-serving member of the Senate Intelligence Committee in American history.

The bill would have also protected Risen from government prosecutors looking to go straight to tech companies for his data. Before a tech company could turn anything over under the new law, they’d have to let the journalist know about the subpoena and give them a chance to respond in court, unless doing so would undermine an ongoing investigation, in which case the government can get a delay of no more than 90 days.

The bill also narrows what can be requested by subpoena down to information needed to confirm that what was reported is true. In other words, if a journalist exposes a crime with his or her reporting, that’s often not enough for a prosecutor to use against the perpetrator, because a news article is technically hearsay. This bill limits what can be obtained “to the purpose of verifying published information,” which would block fishing expeditions from prosecutors trying to find out the identity of every person a journalist spoke to over a specific period of time.

A coalition of advocates of press freedom is urging the Senate to move the bill before the term expires. Wyden said he plans to stay in Washington the next few days to work on the upcoming tax package and will be focused on the PRESS Act as well. “We’re going to pull out all the stops to get this in,” he said.

CLASSIFIEDS

Since its inception, Captain Blankenship has been on a mission to create more beauty while leaving less waste behind. Every hand-crafted formula is made with simple, sustainable ingredients that promote the intelligence of nature to illuminate the wild beauty of your hair. That means consciously sourcing the most potent, time-honored ingredients, creating beautiful products that are effective for multiple hair types, and entering mutually beneficial partnerships with our sources. As we continue our journey in a direction that sustains both people and planet, we deepen our purpose to be a wild force for good. Captain Blankenship is a B Corporation (profits don’t go out to shareholders but are reinvested), is animal-testing free, uses 100 percent recycled and recyclable aluminum containers, and sources everything organically. Visit Captain Blankenship and use the code RYAN15 to get 15 percent off your order.

For classified inquiries, email elizangarcia@gmail.com with “classified question” in the subject line.